Gcweka and others v Road Accident Fund

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Tilana-Mabece AJ
• Judgment Date: 23 August 2023
• Citation: 2023 JDR 3293 (ECM)
• Hearing Date: 22 August 2023
• Docket Number: 756/2021
• Court: Eastern Cape Division

Tilana-Mabece AJ:

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Tilana-Mabece AJ

1.

The applicants are plaintiffs in the main action and respondent is the defendant. The issue for determination in all these matters is the striking out of defendant’s defence for reason of failure to comply with a court order compelling discovery of documents. The matters were set down on an unopposed roll, and the applicants were invited to make submissions. For convenience a consolidated judgment is produced.

2.

It appears that the said orders were duly served on defendant and followed by the notices and/or communication requiring compliance. Despite this defendant failed to comply with the orders and that prompted these applications to strike out defendant’s defence.

3.

The summation of the reasons for the applicants to seek the drastic order is prejudice, delay in the finalization of their matters and the absence of an alternative relief. Applicants further contend that failure of defendant to comply with the court orders is sufficient proof that defendant is in contempt and deliberate in its actions. These submissions are based on defendant’s failure to comply and no further details are provided to substantiate.

4.

Application to strike out a defence is regulated by Rule 30A which provides as follows:

“(1)

Where a party fails to comply with these rules or with a request made or notice given pursuant thereto, or with an order or direction made in a judicial case management process referred to in rule 37A, any other party may notify the defaulting party that he or

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Tilana-Mabece AJ

she intends, after the lapse of 10 days from the date of delivery of such notification, to apply for an order:

(a)

that such rule, notice, request, order or direction be complied with; or

(b)

that the claimant’s defence be strike out.

(2)

Where a party fails to comply within the period of 10 days contemplated in subrule (1), application may on notice be made to the court and the court may make such order thereon as it deems fit.”

5.

The court is clothed with a discretion to strike out the defence on reasons of non-compliance, which must be exercised judicially. In my view, striking out a defence should be a last resort as it is a drastic step. Accordingly, a court must be appraised of sufficient facts on the basis of which it could exercise its discretion judicially. It is not enough to state obvious factors as mentioned by applicants, gross recalcitrance or wilful recklessness on the part of defendant must be shown.

6.

In the case of Wilson v Die Afrikaans Pers Publikasies (EDMS) BPK 1971 (3) SA 455 (T) at 462 H-463 B where the court held as follows:

“The striking out of a defendant’s defence is an extremely drastic step which has the consequences that the action goes forward to a trial as an undefended matter. In the case if the orders were granted it would mean that a trial court would eventually hear this action without reference to the justification which the Defendant has pleaded and which it might conceivably be in a position to establish by evidence. I am accordingly of the view that very grave step will be resorted to only if the court considers that a Defendant has

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Tilana-Mabece AJ

deliberately and contemptuously disobeyed its...